Chi., K. & N. Ry. Co. v. Wiebe

Citation41 N.W. 297,25 Neb. 542
CourtSupreme Court of Nebraska
Decision Date04 January 1889
PartiesCHICAGO, K. & N. RY. CO. v. WIEBE.
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Where evidence is introduced without objection to prove certain facts, a party cannot predicate error thereon; and the same rule will apply if a party excepts to the introduction of certain evidence, and afterwards introduces the evidence objected to, or that of a like character.

2. An instruction in a party's favor is not ground for reversing a judgment against him.

3. In an appeal from the award of damages sustained by a land-owner from the location of a railway across his land, he is entitled to full compensation for the land actually taken, and for such damages to the residue of the land as are equivalent to the diminution in value thereof; general benefits not to be considered.1

4. Instructions set out in the opinion held to be substantially correct.

Error to district court, Gage county; APPELGET, Judge.

Action by the Chicago, Kansas & Nebraska Railway Company against J. G. Wiebe, to condemn the right of way across defendant's land. From a judgment for defendant, plaintiff brings error.Hazlitt & Bates and Stephen S. Brown, for plaintiff in error.

Griggs & Rinaker, for defendant in error.

MAXWELL, J.

In August, 1886, the defendant in error was possessed of a strip of land west of Third street, in the city of Beatrice. This strip was about 1,000 feet in length, and from 126 to 166 feet in width, there being some controversy as to the exact width. This strip, for 558 feet south from the north line, was inclosed with a fence at the date in question, and the defendant in error had in such inclosure a lumber-yard, dwelling-house, etc. At the time mentioned the plaintiff in error instituted proceedings to condemn the right of way across said strip south of the inclosure. The commissioners appointed, after an examination of the property, allowed the defendant in error $2,407. The railway company appealed to the district court, where, on the trial, a verdict was returned for the sum of $2,418.11, with interest from November 4, 1886, amounting, in all, to $2,584.13. A motion for a new trial having been overruled, judgment was entered on the verdict. A number of objections are made to the introduction of certain evidence, but an examination of the transcript shows that nearly all such evidence was introduced without objection, and that evidence, similar to that objected to, was introduced by the plaintiff in error. The alleged errors, therefore, cannot be considered. The testimony of the defendant in error, and also that of the plaintiff in error, tends to show that the defendant in error sustained a large amount of damages, by reason of the location and construction of the road in question, and, the verdict being within the values as proved, it will not be disturbed on the ground that the evidence is insufficient. In addition to the evidence preserved in the bill of exceptions which was presented to the jury, the court permitted the jury to view the premises in controversy, and see for themselves the injury occasioned to the defendant in error by the location of the road across his land. A plat accompanying the bill of exceptions shows that the railway is located on a line running north-east and south-west, near the middle of that portion of the tract which is south of the inclosure heretofore spoken of. The railway company contends that the court erred in giving and refusing certain instructions. The objections will be noticed in their order.

The court, at the request of the plaintiff below, instructed the jury “that, in estimating the damages occasioned by the construction of defendant's road through plaintiff's premises, they are not to be limited to damages done to said premises south of the fence running east and west across the same, and near the middle thereof, but, if they believe from the evidence in this case that said premises north of said fence were also damaged by the construction of said road through said premises, they must consider, in fixing the amount of plaintiff's recovery, all damages occasioned by the said construction of said road to plaintiff's entire premises.”

The testimony shows that this land of the defendant in error was not laid off into lots and blocks, the north 558 feet being inclosed. Had there been no inclosure, it cannot be questioned that the defendant in error would have been entitled to damages for the entire tract, if such damages were proved. There was testimony tending to show that the location and construction of the road would depreciate the value of the entire premises. This testimony was proper to submit to the jury. The court, in effect, said to the jury that if they believed from the evidence that the premises north of the fence were damaged by the construction of the road through said land, that they might allow for such damages. This, we think, is a correct statement of the law.

Objection is also made to the third instruction, given at the request of the plaintiff below, which is as follows: “The court instructs the jury that although they may find from the evidence in this case that all property in the vicinity of plaintiff's premises, through which defendant's road runs, experienced a general increase in value, by reason of the construction of defendant's road, and that plaintiff's premises shared in such general increase, still they must not deduct such increase in the value of plaintiff's premises from the damages done to the said premises by the construction of defendant's road through them, nor are they permitted to consider said increased value of said premises for the purpose of reducing plaintiff's damages.” This instruction was correct. All the cases seem to concur in excluding mere general and public benefits which the owner of the law shares in common with the rest of the inhabitants of the vicinity. Wagner v. Gage Co., 3 Neb. 242; Schaller v. Omaha, 23 Neb. 325, 36 N. W. Rep. 533.

Objection is made to the fifth instruction, given at the request of the plaintiff below, which is as follows: “The court instructs the jury that in estimating plaintiff's damages they should consider how the taking of plaintiff's land affects the tract, considering the tract as a whole, and just as it was, with all conveniences and franchises which the evidence shows it to have had, at...

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  • Tyson Creek Railroad Co. v. Empire Mill Co.
    • United States
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    • July 3, 1918
    ......393, 21 Am. Rep. 522; St. Louis etc. R. R. Co. v. Continental Brick Co., 198 Mo. 698, 96 S.W. 1011; Chicago etc. Ry. Co. v. Wiebe, 25. Neb. 542, 41 N.W. 297; Guthrie etc. Ry. Co. v. Faulkner, 12 Okla. 532, 73 P. 290; Laflin v. Chicago. etc. Ry. Co., 33 F. 415; Adden v. White ......
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  • Omaha S. Ry. Co. v. Todd
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    ...operation and occupation of the railroad thereon, excluding general benefits. Railroad Co. v. McKinley, 64 Ill. 339; Railroad Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297; Robbins v. Railroad Co., 6 Wis. 610; Railroad Co. v. Horn, 41 Ind. 479. In an inquiry whether, and how much, the part of a f......
  • Omaha Southern Railway Company v. Todd
    • United States
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    • March 21, 1894
    ...... excluding general benefits. (Rockford, R. I. & St. L. R. Co. v. McKinley, 64 Ill. 338; Chicago, K. & N. R. R. Co. v. Wiebe, 25 Neb. 542, 41 N.W. 297; Robbins v. Milwaukee & H. R. Co., 6 Wis. 636; Grand Rapids & I. R. Co. v. Horn, 41 Ind. 479.) In an inquiry whether, ......
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